The deposit is a payment in part of the purchase-money (c); and the purchaser cannot elect to forfeit it and avoid the agreement (d).

Even the deposit should not be paid to a mere agent for sale, without express authority from the vendor; if the authority be for the agent to receive it at a particular time, or in a particular manner, of course it cannot be safely paid at any other time, or in any other manner (e); the purchaser, however, will not be liable for loss arising from his having followed any such special authority as to the mode of payment (f).

The deposit cannot safely be paid by the purchaser by being set off in account with the auctioneer or agent, except under the special circumstances of his being able to show the existence of a debt of equal amount due from the vendor to the auctioneer or agent, and that the latter was authorized by the vendor to retain the deposit on account of such debt (g); so, if, instead of making a cash payment, the purchaser give his acceptance, payment of the bill when due is no defence to an action by the vendor, if the bill never came into his possession (h).

Clerk of agent cannot bind principal.

Deposit is a part payment.

Purchaser cannot elect to forfeit it.

To whom and how it should be paid.

Not to be paid by settlement of accounts with agent, except under special circumstances; nor by acceptance.

(a) Wilson v. Tummon, 6 Man. & Gr. 236; 6 Sc. N. R. 894.

(b) Coles v. Trecothick, 8 Ves. 234.

(c) Sug. 48.

(d) 2 Mer. 506.

(e) See Young v. Guy, 8 Beav. 149.

(f) Sug. 4 7.

(g) Barker v. Greenwood, 2 Y. & C, Ex. 414; Young v. White, 7 Beav. 506; Hartley v. Cassan, 11 Jur. 1088.

(h) Sylces x. Giles, 5 Mee. & W. 645.

If a cheque be given for the deposit, an action on the cheque may be resisted upon any ground which would have enabled the purchaser to recover at Law the deposit if actually paid (i).

If a purchaser become entitled to a return of his deposit, he can, in the absence of special agreement, claim the specific sum paid, with interest; and will not be prejudiced or advantaged by any fall or rise in any securities in which it may have been invested: unless such invest-ment were made with his assent, (which will not be assumed from his making no reply to notice of the investment (j),) or, (in the case of a bill being filed for specific performance,) under the authority of the Court; in which cases the investment will be at his risk and for his benefit (k): and the same rules apply to an investment of the purchase-money by the purchaser, pending discussions as to title, etc.

Equity will, in general, relieve the purchaser against forfeiture of his deposit, if he be able and willing to give to the vendor the full benefit of the contract (l): its return, with interest, may be directed even in a suit for specific performance, where the bill is dismissed, if the vendor be Plaintiff; but not if the purchaser be Plaintiff (m); nor, where the vendor is Plaintiff, if the bill be dismissed without any decision upon the question of title, but for ladies, or on some other collateral ground (n).

If the purchaser die before obtaining a conveyance, intestate and without an heir, it seems probable that the vendor might retain both the estate and the deposit (o).

Cheque for, when void.

Purchaser not bound by investment of, except in special cases.

Forfeiture of, when relieved against.

May be retained by vendor, if purchaser die without heir; semble

(i) Milts v. Oddy, 6 Car. & P. 728.

(j) See Roberts v. Massey, 13 Ves. 561.

(k) See Poolev. Rudd, 3 Bro. C. C. 49; Sug. 50, 51.

(l) Sug. 51; Moss v. Matthews, 3

Ves. 279.

(w) Sug. 51; see Williams v. Ed-wards, 2 Sim. 78; see also Gee v. Pearse, D. G. & S. 325.

(n) Southcomb v. Bishop of Exeter, 0 Ha. 225, 228.

(o) Sug. 337.

As a general rule, if the deposit be lost through the insolvency of the auctioneer, the loss falls on the vendor (p).